Opinion
No. CV557291-04/B
05-28-2019
UNIFUND CCR PARTNERS, AS ASSIGNEE OF CITIBANK NA, Plaintiff, v. PISSANA M. SYSOMBOUNE aka PM SOMBOUNE, Defendant.
Unpublished Opinion
ORDER
DEBRA L. GIVENS, JUDGE
Defendant, Pissana M. Sysomboune ("Sysomboune"), filed an Order to Show Cause to vacate a Default Judgment granted in favor of Plaintiff Unifund CCR Partners, as Assignee of Citibank NA ("Unifund") pursuant to CPLR 5015 (a)(1),(4) and CPLR 3211(a)(2),(3); and to dismiss the Complaint on the grounds that the Plaintiff lacks standing to sue; that the Court lacks subject matter jurisdiction and in the interest of justice; permitting Defendant to interpose an Answer; and for such other and further relief as may be just and proper.
Plaintiff opposes Defendant's motion and argues that this Court has obtained jurisdiction over the Defendant and that Defendant has failed to establish a reasonable excuse or a meritorious defense.
NOW, upon reading and filing the Order to Show Cause, the affidavit of Defendant Sysomboune, sworn to April 3, 2019, and the pleadings and exhibits in support of the Order to Show Cause, and the Affirmation in Opposition to the Order to Show Cause of Kerri S. Flynn, Esq., Associate Attorney with Mullooly, Jeffrey, Rooney & Flynn LLP, Attorneys for Plaintiff, Unifund, dated April 29, 2019, and the pleadings and exhibits all in Opposition to Defendant's Order to Show Cause and the motion regularly come on to be heard before the Hon. Debra L. Givens on May 17, 2019 and after hearing Casey Callanan, Esq., appearing for Plaintiff and Neha M. Karambelkar, Esq., of CLARO, appearing for Defendant, and due deliberation having been had thereon, This Court agrees with Defendant that the Plaintiff debt-buyer, has failed to establish it had standing to sue. Plaintiffs default judgment application contained the affidavit of Amy Treadon, Legal Coordinator and employee of the Assignee/Plaintiff corporation, who merely stated that she has personal knowledge of the facts from the records in their possession. Treadon's 2003 affidavit fails to even assert that an assignment had been made between Unifund and Citibank NA.
In addition, Unifund failed to attach any documentation in response to Defendant's motion to establish that an assignment had been made and therefore made no effort to establish the necessary chain of title.
It has been long recognized in this Court that an "hearsay assertion in an affidavit that the assignment took place is not sufficient proof that the assignment in fact took place" (NCO Portfolio Mgt. v Wilson, No. E05386, 2014 NY Misc. Lexis 5649 at 2, [Buffalo City Court December 10, 2014]). In the present case, Plaintiffs affirmation did not even rise to this level, as Plaintiff failed to make any mention of the assignment.
Further in NCO Portfolio Mgt., the Court stated that, as in the instant case, "a review of the judgment and the affidavit of merit reveals that said judgment should not have been granted in the first place, as Plaintiff failed to demonstrate it had standing to sue on the underlying debt. Even in its Complaint, Plaintiff failed to allege that it purchased the subject debt from its assignor Citibank NA. In the Court's file is the woefully inadequate affidavit of merit of Amy Treadon.
Just as in NCO Portfolio Mgt., employee Treadon lacked personal knowledge of the claim and the manner in which the original creditor maintained its books and records. It is clear that her affidavit was not based on personal knowledge as is required by CPLR 3215 and is therefore insufficient.
Plaintiff failed to satisfy the requirements of CPLR 3215 in obtaining the default judgment (see also Livingston Financial LLC v Banks, Index No. CV024001-08/BU Slip Op., Chief Judge Thomas P. Amodeo (BCC) July 6, 2018; RAB Performance Recoveries, LLC v Moss, Index No. G08071/06, Slip Op, Hon. Debra L. Givens (BCCJ) March 6, 2018).
Significantly, the Fourth Department has held "that to establish standing, Plaintiff is required to submit evidence in admissible form, establishing that the original creditor had assigned its interest in Defendant's debt to Plaintiff' (Unifund CCR Partners v Youngman, 89 A.D.3d 1377 ; see Pallisades Collection, LLC v Kedik, 67 A.D.3d 1329 ; Midland Funding v Coia, 59 Misc.3d 1232(A) [Sup Ct Monroe Co 2018]).
Based upon the forgoing, it is the finding of this Court that Plaintiff did not have standing to sue, that the default judgment entered was a nullity and must be vacated and the action dismissed.
As a result, this Court need not address the remaining contentions.
It is the Decision and Order of this Court that Defendant's motion to vacate the default judgment rendered in favor of the Plaintiff and against the Defendant on May 26, 2004, for $14,340.59 is hereby granted and further that Plaintiffs Complaint is dismissed on the ground of lack of standing, that all enforcement or execution upon the judgment is lifted and the Plaintiff is permanently restrained, enjoined, and prohibited from any further action to enforce or execute upon the default judgment, and that any bank restraints, if any, be removed and that any monies Plaintiff collected through its enforcement of the judgment must be returned to Defendant within thirty (30) days from service of notice of entry of this Order.
This shall constitute the Decision and Order of this Court.